Novelty 11 - Observance of Pre-Action Procedure

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the eleventh most significant change, in our opinion,  attributable to the observance of pre-action procedure.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5, Novelty No 6, Novelty No 7, Novelty No 8, Novelty No 9, Novelty No 10.

The Bill fully takes into account the recent amendments to the Constitution of Ukraine regarding the observance of pre-action procedure for court disputes.

A complaint will be returned to the plaintiff if he has failed to resort to the mandatory pre-action procedure before going to court.

At the same time, the pre-action procedure set out at present for tax disputes by the Tax Code of Ukraine (Section  56) is hardly to be considered mandatory. The procedure in question is not a prerequisite for filing a complaint claim with a court. A taxpayer may apply to a court irrespective of his previous appeal to the tax authority of a higher level with an administrative complaint.

In the meanwhile, one cannot rule out the  further adoption of amendments to the Tax Code of Ukraine to set out the mandatory pre-action procedure for tax disputes.

* - photo from www.slideshare.net  

Novelty 10 - New Rules for the Exchange of Procedural Documents

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the tenths most significant change, in our opinion,  attributable to the new rules for the exchange of procedural documents between litigants.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5, Novelty No 6, Novelty No 7, Novelty No 8, Novelty No 9.

As already discussed in respect of the other changes, the Bill provides for the new "philosophy" of a trial aimed at the fast and efficient resolution of cases by conducting a thorough pretrial proceeding.  

The new approach requires the exchange of procedural documents to be completed at the stage of a pretrial proceeding. The widespread submission of procedural documents at the stage of a trial which is so common nowadays must not take place in the future.

In addition, the Bill somewhat changes the names of procedural documents and establishes the clear sequence of their submission.

After a plaintiff has filed the complaint with the court, the defendant may submit his response to the complaint (a new name for the current objection to a complaint). The plaintiff can prepare and file a reply to the response of the defendant. In his turn, the defendant may lodge his objections to the reply of the plaintiff.

* Photo from http://fixate.io

Novelty 9 - Simplified Proceeding

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the ninth most significant change, in our opinion,  attributable to the introduction of a simplified proceeding.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5, Novelty No 6, Novelty No 7, Novelty No 8.

Courts of first instance, apart from a general proceeding, will consider some cases under a simplified proceeding (the analogue of the currently existing written and shortened proceedings).

In particular, the Bill sets out that tax cases:

• For the amount below 100 subsistence minimums for employable persons* will be considered under the simplified proceeding only;

• For the amount from 100 to 500 subsistence minimums for employable persons may be considered under either the simplified or general proceedings at the discretion of the court;

• For the amount over 500 subsistence minimums for employable persons will necessary be considered under the general proceeding.

The simplified proceeding is characterised by the following:

• There will be 60 days for the resolution of a case, instead of 90 days available within the scope of the general proceeding;

• There will be no court hearing conducted at the stage of a pretrial proceeding;

• By default, there will be no court sessions (hearings) to held at the stage of  trial. Court sessions are possible at the initiative of the court or at the request of at least one of the parties to litigation (if the court finds the request justified);  

• There will be more concise time-periods for litigants to carry out the exchange of procedural documents.

• There will be no court debates (providing closing oral pleadings of litigants)  during trial.

* As of August 2017, a subsistence minimum for employable persons amounts to UAH 1,684.

** - Photo from www.slideshare.net

Novelty 8 - Elimination of Two-Stage Cassation Review

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the eighth most significant (of course, in our opinion) change attributable to the removal of double cassation review.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5, Novelty No 6, the Novelty No 7.

The Bill provides for the liquidation of the Highest Administrative Court of Ukraine (HACU). The cassation review will be performed by the newly created Supreme Court only. There will be no repeated cassation review anymore.

This must put an end to the existing problem of the discrepancy between the HACU’s and the Supreme Court of Ukraine’s jurisprudence in the same tax disputes. A striking example of this problem is court jurisprudence in cases concerned with the recovery of overdue VAT refund. For a long time, there has been a contradiction between the approaches of the HACU and the Supreme Court of Ukraine on the application of the proper legal remedy in such cases.  

* - Photo from http://moygrad.kiev.ua